On trial

When the Supreme Court meddled in the 2000 election, taking charge of what should have been a regular — if stressful — process of electoral recount, were you surprised? I was. At that point, I thought the court had more judicial good sense than to cross the line into political activism … I was wrong. But then, we had just turned the corner into a new century. I had high expectations for a bright future and easy slide into ground-breaking modernity.

Pffffft!

Hadn’t fully anticipated the effort it would take to pull our feet out of the bucket of sludge we were standing in, I guess. But after a dozen years of dealing with the slime, and as the 2012 energy floods the planet, I … we … have high expectations for a course correction.

This week, having lived with the results of the Citizens United ruling and watched the Robert’s court sail through case after case favoring corporations, we find ourselves suffering a long moment of suspense while the court decides on the constitutionality of the Affordable Care Act.

Because those who serve on the High Court have become increasingly partisan and idiosyncratic, there is no way to predict this judgment — although if I had to guess, I’d suspect they’ll let the ACA stand rather than make such a terrible mess of things. A negative outcome would [too quickly] turn our very slow-moving Ship of State on its axis and create political and social confusion at a pivotal time in the election season that would make waves we can’t even anticipate. The backwash might even swamp the very political movement our Federalist Supremes want to promote.

Still, there’s no way of knowing how this will turn out and we anticipate this to be a year of shocks and surprises. To get this moment on the record, then, I’m posting the best reads [and links] from this last week on the prospects of the judicial process: Robert Scheer rants for us and the New York Times editorial board demands common sense, while EJ Dionne and Bob Reich hint at what might be possible if the Supremes act rashly and rule as the political ideologues they are. I’m also including a list of links for those ambitious enough to want to dig through the bowels of this issue, heavy on the legalese.

First though, a read from today — essentially “after the fact” of the three-day riot-fest of speculation and intrigue — that sums up the cost the Court is now … FINALLY … paying for its perceived bias, posted as illustration to a hypothesis I explored in my PlanetWaves blog piece this weekend.

With cranky computer and Merc retro issues … all of which try my patience and impede my progress in posting … I’m determined to get this out on the last day of the month. We shall see if I’m successful, much as we’ll eventually see if the High Court chooses precedent over activism, justice over power.

Before this week, the well-being of tens of millions of Americans was at stake in the lawsuits challenging the Affordable Care Act.

Now something else is at stake, too: The legitimacy of the Supreme Court.

Nobody knows how the justices will rule. And nobody can know, not even the justices themselves. On Friday morning, perhaps by the time you read this, they will meet privately to take their first vote. More often than not, this first vote determines the final verdict. But there are exceptions and Anthony Kennedy, on whose decision the outcome presumably depends, has a reputation for long deliberation and changes of heart—particularly in major cases like this one.

That’s good. With the result apparently in doubt—smart money still says the chances of the full law surviving are about 50-50—Kennedy should think long and hard about how he wants the Court to rule. So should Chief Justice John Roberts, who appeared more skeptical of the government’s case during oral arguments but nevertheless indicated that he, like Kennedy, understood the government’s premise—that health care was a special market, perhaps requiring special intervention.

If that concern is not enough to sway the chief justice, than perhaps his frequently professed concern for the court’s respectability will.
Even now, I have trouble wrapping my mind around what I saw in the courtroom this week and what a majority of the justices may be contemplating. Kennedy’s second question, the one that so unnerved supports of the law, was whether the government had “a heavy burden of justification to show authorization under the Constitution.” But the heavy burden in this case is on the justices threatening to strike down health care reform. They have not met it.

Rarely in American history has the Court struck down laws in decisions that would have such quick, widespread impact. In the modern era, only two cases come to mind: Brown v. Board of Education and Roe v. Wade. Both were acts of ambitious, even audacious judicial activism. But, in two key repsects, they were different from a potential ruling against the Affordable Care Act.

Brown was a unanimous, nine-to-zero decision. Roe was a lopsided seven-to-two. These margins mattered: The justices knew that their decisions would be controversial, in part because they were overruling democratically elected majorities—in these cases, state legislators who’d passed laws enforcing segregation and prohibiting abortion. The justices’ authority in these cases derived, in part, from their moral authority. A closely divided bench would have made that impossible.

Virtually everybody agrees that a vote to strike down the Affordable Care Act would be five to four—a bare majority. And it would be a bare partisan majority, with the five Republican appointees overruling the four Democratic appointees. The decision would appear nakedly partisan and utterly devoid of principle. Appearances would not be deceiving.

The second distinction is even more more significant. Today Brown is a nearly universal icon of social progress, while Roe remains an object of great controversy. But, for better or for worse, both cases represented efforts to change the everyday reality of American life. With Brown, the justices were tearing down barriers to racial equality; with Roe, the justices were eliminating laws that prevented access to abortion.

But in this case, nobody has said they want to stop government from providing universal access to health care. On the contrary, the plaintiffs have stated that a program like Medicare, in which the government provides citizens with insurance directly, would be clearly constitutional. They’ve also stated that a scheme of compulsory private insurance would be constitutional if somehow the government could make people buy it when they show up at the hospital—suggesting, as Elena Kagan stated, that the only problem with the Affordable Care Act is temporal.

Most amazing of all: The plaintiffs have conceded that a universal health insurance program would be constitutional if, instead of penalizing people who decline to get insurance, the government enacted a tax and refunded the money to people who had insurance. As Sonia Sotomayor noted, functionally such a scheme would be exactly the same as the Affordable Care Act. Both the plaintiffs and some of the skeptical justices have also indicated that the Affordable Care Act would be constitutional if the law’s architects had simply used the word “tax” to describe the penalty.

Think about that for a second: If the justices strike down the Affordable Care Act, they would be stopping the federal government from pursuing a perfectly constitutional goal via a perfectly constitutional scheme just because Congress and the Preisdent didn’t use perfectly constitutional language to describe it. Maybe labels matter, although case law suggests otherwise. But do they matter enough for the Court to throw out a law that will provide insurance to 30 million people, shore up insurance for many more, and help to manage one-sixth of the American economy? It wouldn’t seem so.

Of course, the conservative justices who would invalidate the Affordable Care Act may not hold the law in especially high regard. Samuel Alito, in particular, suggested during oral argument that he had serious problems with younger, healthier people subsidizing, via their insurance premiums, the medical expenses of older, sicker people—which just happens to be the defining feature of Medicare, Social Security, and every other social insurance scheme on the planet.

Alito is entitled to his opinion about what makes for good legislation. But he’s not entitled to impose that opinion on the country and his colleagues aren’t, either. Their job is to determine whether a law is constitutional, not whether a law is wise. And the more significant the law, the more unambiguous their judgment ought to be. ++

In ruling on the constitutionality of requiring most Americans to obtain health insurance, the Supreme Court faces a central test: whether it will recognize limits on its own authority to overturn well-founded acts of Congress.

Are the Supreme Court justices giving due consideration to the health care law, or preparing to engage in “judicial activism” to reduce federal power?

The skepticism in the questions from the conservative justices suggests that they have adopted the language and approach of the insurance mandate’s challengers. But the arguments against the mandate, the core of the health care reform law, willfully reject both the reality of the national health care market and established constitutional principles that have been upheld for generations.

The Obama administration persuasively argues that the mandate is central to solving the crisis in America’s health care system, which leaves 50 million people uninsured and accounts for 17.6 percent of the national economy. The challengers contend that the law is an unlimited — and, therefore, unconstitutional — use of federal authority to force individuals to buy insurance, or pay a penalty.

That view wrongly frames the mechanism created by this law. The insurance mandate is nothing like requiring people to buy broccoli — a comparison Justice Antonin Scalia suggested in his exasperated questioning of Solicitor General Donald Verrilli Jr. Congress has no interest in requiring broccoli purchases because the failure to buy broccoli does not push that cost onto others in the system.

Congress has indisputable authority to regulate national markets and provide for the general welfare through its broad power to tax. Nothing about the mandate falls outside those clearly delineated powers.

In fact, Justice Scalia has, in the recent past, declared Congress’s broad authority under the commerce clause to regulate activities with far less direct economic impact. In a 2005 case upholding a federal law prohibiting the growing of medical marijuana for personal use, he wrote that Congress may regulate even intrastate activities “that do not themselves substantially affect interstate commerce.”

The skepticism of Chief Justice John Roberts Jr. and Justices Scalia and Samuel Alito Jr. was also troubling because it seemed to accept an odd distinction of timing made by the opponents of the law.

Those critics concede that the mandate would be constitutional if it went into effect at the moment an individual actually needed health care. In other words, Congress could require the sick and dying to pay for insurance or for medical services when they show up in the emergency room, but it cannot require precoverage of medical costs through insurance.

The court has no authority under the Constitution to judge the merits or effectiveness of the health care law. That is Congress’s job.

Yet, as Justice Stephen Breyer remarked about the points made by a lawyer for the opponents: “All that sounds like you’re debating the merits of the bill.” To counter the challengers’ claims of alarm over a novel policy, he offered several examples in American history where the court has strongly backed new solutions to major problems, like the creation of a national bank in the early 19th century.

If the Supreme Court hews to established law, the only question it must answer in this case is modest: Did Congress have a rational basis for concluding that the economic effects of a broken health care system warranted a national solution? The answer is incontrovertibly yes. ++

Not surprisingly, today’s debut Supreme Court argument over the so-called “individual mandate” requiring everyone to buy health insurance revolved around epistemological niceties such as the meaning of a “tax,” and the question of whether the issue is ripe for review.

Behind this judicial foreplay is the brute political fact that if the Court decides the individual mandate is an unconstitutional extension of federal authority, the entire law starts unraveling.

But with a bit of political jujitsu, the president could turn any such defeat into a victory for a single-payer healthcare system — Medicare for all.

Here’s how.

The dilemma at the heart of the new law is that it continues to depend on private health insurers, who have to make a profit or at least pay all their costs including marketing and advertising.

Yet the only way private insurers can afford to cover everyone with preexisting health problems, as the new law requires, is to have every American buy health insurance – including young and healthier people who are unlikely to rack up large healthcare costs.

This dilemma is the product of political compromise. You’ll remember the Administration couldn’t get the votes for a single-payer system such as Medicare for all. It hardly tried. Not a single Republican would even agree to a bill giving Americans the option of buying into it.

But don’t expect the Supreme Court to address this dilemma. It lies buried under an avalanche of constitutional argument.

Those who are defending the law in Court say the federal government has authority to compel Americans to buy health insurance under the Commerce Clause of the Constitution, which gives Washington the power to regulate interstate commerce. They argue our sprawling health insurance system surely extends beyond an individual state.

Those who are opposing the law say a requirement that individuals contract with private insurance companies isn’t regulation of interstate commerce. It’s coercion of individuals.

Unhappily for Obama and the Democrats, most Americans don’t seem to like the individual mandate very much anyway. Many on the political right believe it a threat to individual liberty. Many on the left object to being required to buy something from a private company.

The President and the Democrats could have avoided this dilemma in the first place if they’d insisted on Medicare for all, or at least a public option.

After all, Social Security and Medicare require every working American to “buy” them. The purchase happens automatically in the form of a deduction from everyone’s paychecks. But because Social Security and Medicare are government programs financed by payroll taxes they don’t feel like mandatory purchases.

Americans don’t mind mandates in the form of payroll taxes for Social Security or Medicare. In fact, both programs are so popular even conservative Republicans were heard to shout “don’t take away my Medicare!” at rallies opposed to the new health care law.

There’s no question payroll taxes are constitutional, because there’s no doubt that the federal government can tax people in order to finance particular public benefits. But requiring citizens to buy something from a private company is different because private companies aren’t directly accountable to the public. They’re accountable to their owners and their purpose is to maximize profits. What if they monopolize the market and charge humongous premiums? (Some already seem to be doing this.)

Even if private health insurers are organized as not-for-profits, there’s still a problem of public accountability. What’s to prevent top executives from being paid small fortunes? (In more than a few cases this is already happening.)

Moreover, compared to private insurance, Medicare is a great deal. Its administrative costs are only around 3 percent, while the administrative costs of private insurers eat up 30 to 40 percent of premiums. Medicare’s costs are even below the 5 percent to 10 percent administrative costs borne by large companies that self-insure, and under the 11 percent costs of private plans under Medicare Advantage, the current private-insurance option under Medicare.

So why not Medicare for all?

Because Republicans have mastered the art of political jujitsu. Their strategy has been to demonize government and seek to privatize everything that might otherwise be a public program financed by tax dollars (see Paul Ryan’s plan for turning Medicare into vouchers). Then they go to court and argue that any mandatory purchase is unconstitutional because it exceeds the government’s authority.

Obama and the Democrats should do the reverse. If the Supreme Court strikes down the individual mandate in the new health law, private insurers will swarm Capitol Hill demanding that the law be amended to remove the requirement that they cover people with pre-existing conditions.

When this happens, Obama and the Democrats should say they’re willing to remove that requirement – but only if Medicare is available to all, financed by payroll taxes.

If they did this the public will be behind them — as will the Supreme Court. ++

Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.

Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?

It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.

Justice Stephen Breyer noted that some of the issues raised by opponents of the law were about “the merits of the bill,” a proper concern of Congress, not the courts. And in arguing for restraint, Justice Sonia Sotomayor asked what was wrong with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.” It was nice to be reminded that we’re a democracy, not a judicial dictatorship.

The conservative justices were obsessed with weird hypotheticals. If the federal government could make you buy health insurance, might it require you to buy broccoli, health club memberships, cellphones, burial services and cars? All of which have nothing to do with an uninsured person getting expensive treatment that others — often taxpayers — have to pay for.

Liberals should learn from this display that there is no point in catering to today’s hard-line conservatives. The individual mandate was a conservative idea that President Obama adopted to preserve the private market in health insurance rather than move toward a government-financed, single-payer system. What he got back from conservatives was not gratitude but charges of socialism — for adopting their own proposal.

The irony is that if the court’s conservatives overthrow the mandate, they will hasten the arrival of a more government-heavy system. Justice Anthony Kennedy even hinted that it might be more “honest” if government simply used “the tax power to raise revenue and to just have a national health service, single-payer.” Remember those words.

One of the most astonishing arguments came from Roberts, who spoke with alarm that people would be required to purchase coverage for issues they might never confront. He specifically cited “pediatric services” and “maternity services.”

Well, yes, men pay to cover maternity services while women pay for treating prostate problems. It’s called health insurance. Would it be better to segregate the insurance market along gender lines?

The court’s right-wing justices seemed to forget that the best argument for the individual mandate was made in 1989 by a respected conservative, the Heritage Foundation’s Stuart Butler.

“If a man is struck down by a heart attack in the street,” Butler said, “Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services — even if that means more prudent citizens end up paying the tab. A mandate on individuals recognizes this implicit contract.”

Justice Antonin Scalia seemed to reject the sense of solidarity that Butler embraced. When Solicitor General Donald Verrilli explained that “we’ve obligated ourselves so that people get health care,” Scalia replied cooly: “Well, don’t obligate yourself to that.” Does this mean letting Butler’s uninsured guy die?

Slate’s Dahlia Lithwick called attention to this exchange and was eloquent in describing its meaning. “This case isn’t so much about freedom from government-mandated broccoli or gyms,” Lithwick wrote. “It’s about freedom from our obligations to one another . . . the freedom to ignore the injured” and to “walk away from those in peril.”

This is what conservative justices will do if they strike down or cripple the health-care law. And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme
Court that is supposed to give us justice will instead deliver ideology. ++

The Supreme Court is so full of it. The entire institution, as well as its sanctimonious judges themselves, reeks of a time-honored hypocrisy steeped in the arrogance that justice is served by unaccountable elitism.

My problem is not with the Republicans who dominate the court questioning the obviously flawed individual mandate for the purchasing of private-sector health insurance but rather with their zeal to limit federal power only when it threatens to help the most vulnerable. The laughter noted in the court transcription that greeted the prospect of millions of the uninsured suddenly being deprived of already extended protection under the now threatened law was unconscionable. The Republican justices seem determined to strike down not only the mandate but also the entire package of accompanying health care rights because of the likelihood that, without an individual mandate, tax revenue will be needed to extend insurance coverage to those who cannot afford it.

The conservative justices, in their eagerness to reject all of this much needed reform, offer the deeply cynical justification that a new Congress will easily come up with a better plan — despite decades of congressional failure to address what is arguably the nation’s most pressing issue. In their passion to embarrass this president, the self-proclaimed constitutional purists on the court went so far as to equate a mandate to obtain health care coverage with an unconstitutional deprivation of freedom; to make the connection they cited the spirit of a document that once condoned slavery.

These purists have no trouble finding in that same sacred text a license for the federal government to order the young to wage undeclared wars abroad, to gut due process and First Amendment protections, and embrace torture, rendition and assassination, even of U.S. citizens.

Now they hide behind the commerce clause of the Constitution to argue that the federal government cannot regulate health care coverage because that violates the sacrosanct principle of states’ rights. If the right-wingers on the high court consistently had a narrow interpretation of federal power over the economy, there would be logic to the position expressed by the Republican justices during the last three days of questioning. Of course, the court’s apparent majority on this has shown no such consistency and has intervened aggressively, as did the justices’ ideological predecessors, to deny the states the power to protect consumers, workers and homeowners against the greed of large corporations.

We would not be in the midst of the most severe economic meltdown since the Great Depression had the courts not interpreted the commerce clause as protecting powerful national corporations from accountability to state governments. Just look at the difficulty that a coalition of state attorneys general has faced in attempting to hold the largest banks responsible for their avarice in the housing disaster.

The modern Supreme Court has allowed the federal government to pre-empt the states’ power to protect homeowners, whose mortgage agreements were traditionally a matter of local regulation and registration. The court has no problem accepting Congress’ grant of a legal exemption in the Commodity Futures Modernization Act of 2000 that allows the bundling of home mortgages into unregulated derivatives.

The court has vitiated the power of the states to control interest rates, even though quite a few had explicit provisions in their constitutions banning usury. The result is that loan-sharking by banks that can claim to be engaged in interstate commerce is constitutionally protected, which is why there are no limits on mortgage, credit card or personal loan interest rates.

The sad truth is that President Obama and the Democrats brought this potential judicial disaster upon themselves. In light of what has been said this week in the Supreme Court, it seems inevitable that the linchpin of the 2010 reform — mandated coverage — will be thrown out, probably along with the crucial accompanying reforms. Forget coverage for the young and those with pre-existing medical conditions. The Democrats will protect themselves from this reversal by arguing that all they did was copy the program that this year’s prospective Republican presidential candidate implemented when he was the governor of Massachusetts. Mitt Romney’s plan included the dreaded mandate that he and the Republican justices condemn.

How ironic that Barack Obama’s health care agenda would be in a far stronger legal position had the president stuck by his earlier support of a public option. Clearly, our federal government has the judicially affirmed power under our Constitution to use public revenues to provide a needed public service, be it education, national security, retirement insurance or health care. Obama’s health care reform should have simply extended Medicare and Medicaid coverage to all who wanted and needed it — no individual mandate — while allowing others to opt out for private insurance coverage. That’s an obvious constitutional solution that even those die-hard Republican justices would have a difficult time overturning. ++

“I believe that unarmed truth and unconditional love will have the final word in reality. That is why right, temporarily defeated, is stronger than evil triumphant.”
~ The Reverand Martin Luther King

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